Noncompliance with Notice-of-Claim Statute Is Affirmative Defense, Must Be Pleaded
Wis. Stat. § 893.80(1d) requires a potential claimant to provide notice, including “an itemized statement of the relief sought,” to a government entity within 120 days of the event giving rise to a potential suit. In Maple Grove Country Club Inc. v. Maple Grove Estates Sanitary District, 2019 WI 43, the Wisconsin Supreme Court recently held that a government entity waives a defense of noncompliance with this statute if it fails to affirmatively raise the issue in a responsive pleading.
This matter began in 1990, when a country club constructed a sewer treatment plant to serve the club and a nearby subdivision. In 1998, the local sanitary district adopted an ordinance that required the district to lease or purchase the plant from the club. In 1999, the club and the district agreed to a five-year lease, which was renewed for another five years in 2004. In 2009, the parties did not renew the lease, but the district continued to occupy and use the facility.
In July 2011, the club filed a notice of claim with the district, but without itemizing damages as required by Wis. Stat. § 893.80(1d). The club filed suit in 2014. The district raised six affirmative defenses in its answer, but none mentioned the insufficiency of the notice under section 893.80(1d).
Both sides moved for summary judgment. Only then did the district allege, for the first time, that the club failed to comply with the notice-of-claim statute. The club responded that, because noncompliance was an affirmative defense, the sanitary district waived the issue by failing to raise it in its answer. The district insisted that noncompliance was not an affirmative defense, but a jurisdictional prerequisite that could not be waived and was available to be raised at any point during litigation.
The circuit court dismissed the club’s case on the basis of the “untimely and incomplete” notice of claim. The court of appeals affirmed, relying upon Lentz v. Young, 195 Wis. 2d 457, 536 N.W.2d 451 (Ct. App. 1995). In so doing, however, the court of appeals expressed reservations about Lentz, especially its claim that “a defendant may raise an affirmative defense by motion.” Those reservations proved well-founded.
Last month, the Wisconsin Supreme Court reversed in a 6-0 decision.
First, the court found that noncompliance with Wis. Stat. § 893.80(1d) is an affirmative defense, not a jurisdictional defect. While Mannino v. Davenport, 99 Wis. 2d 602, 29 N.W.2d 823 (1981), deemed noncompliance with Wis. Stat. § 893.82(3) jurisdictional, the Supreme Court distinguished the two statutory provisions. Section 893.82(3) requires strict compliance, whereas 893.80(1d) includes a carve-out for when the government has actual notice and suffered no prejudice from a defective claim document. The Court bolstered its conclusion with cases describing compliance with Wis. Stat. § 893.80(1d) as a condition for governmental liability (not for stating a cause of action), and characterizing noncompliance as a defense. See Rabe v. Outagamie Cty., 72 Wis. 2d 492, 241 N.W.2d 428 (1976); Weiss v. City of Milwaukee, 79 Wis. 2d 213, 255 N.W.2d 496 (1977).
Second, the Court determined that an affirmative defense based on section 893.80(1d) must be raised in a responsive pleading, not in a separate motion. The plain language of Wis. Stat. § 802.02(3) requires all affirmative defenses to be raised in a responsive pleading. By comparison to section 802.06(2)(a), which contains an exhaustive list of ten defenses (not including noncompliance with the notice of claim statute) that can be raised by motion, the Court reasoned that the government must raise noncompliance in a responsive pleading, rather than a motion. In light of its conclusion, the Court also overruled Lentz.
Moving forward, government entities must consider all possible affirmative defenses upon receipt of a notice of claim. Especially if Wis. Stat. § 893.80(1d) applies, the “kitchen-sink” defense may be the safest option.